The Crime Report: Will Marijuana Ever Be Legal?

Last fall I interviewed George Washington University law professor and former federal prosecutor Paul Butler about his 2009 book, Let’s Get Free: A Hip-Hop Theory of Justice. In the book, Butler muses on the unplanned consequences of the drug war, such as ensnaring large numbers of young men of color into the justice system following their arrest for marijuana possession.

I asked him whether he thought marijuana would be legal in his lifetime, and his response surprised me: “I think it’ll be legal in 10 years,” he said.

Pipe Dreams

By Julia Dahl
Sunday, March 14th, 2010 9:11 pm
Will Marijuana Ever Be Legal in the U.S.? Part One of a Two-Part Special Report.

Last fall I interviewed George Washington University law professor and former federal prosecutor Paul Butler about his 2009 book, Let’s Get Free: A Hip-Hop Theory of Justice. In the book, Butler muses on the unplanned consequences of the drug war, such as ensnaring large numbers of young men of color into the justice system following their arrest for marijuana possession.

I asked him whether he thought marijuana would be legal in his lifetime, and his response surprised me: “I think it’ll be legal in 10 years,” he said.

That got me thinking: what is the outlook for the marijuana movement? In the past 18 months, Colorado, New Jersey, Michigan and Massachusetts have all passed significant marijuana reforms, either decriminalizing small quantities of the drug for personal use, or expanding access to medical marijuana.

In January, I set two Google alerts: one for “medical marijuana” one for “marijuana decriminalization.” The stories rolled in—at least a dozen a day over the next two months—and they demonstrated how far the movement has already come. Some highlights: on February 23, the Washington D.C. city council met to discuss a decriminalization measure, and not a single person testified against the proposal; in late February, the Iowa Board of Pharmacy recommended that the state legalize medical marijuana, prompting the state’s legislature to set up a committee to study the issue; and in early March, in two suits filed against the state of California, two dispensary owners in Los Angeles claimed their constitutional rights had been violated when the city capped the number of medical marijuana dispensaries at 70.

But one story overshadowed everything else. In November, Californians will vote on a groundbreaking measure* which would establish a tax and regulatory system for the drug. Could this initiative pass? A Field poll last year showed that 56 percent of state voters supported legalization. That by no means makes it a sure bet, but the initiative’s Facebook page currently has more than 36,000 online fans.

And if the measure does pass, it could galvanize the national movement for reform. Polls last year from Gallup and ABC News already indicate that nearly three-quarters of Americans think medical marijuana should be legal, and that the number of people who approve decriminalization of the drug is inching toward 50 percent.

But marijuana reformers are not ready to celebrate yet.

Trouble Ahead?

Indeed, there are signs that point to choppy waters ahead. In California, the attention to the regulation initiative coincides with growing concern about the boom in the cannabis dispensary business in Los Angeles. In a state where activists have paved the way in transforming marijuana from its association with a seedy subculture on the margins of society into a source of comfort for the desperately ill, opposition to strict regulation and control of dispensaries (as evidenced by the Los Angeles suits mentioned above) has pitted former allies against each other.

And continued hostility from law enforcement could sabotage even the most modest reform measures. Since 1977, possession of 25 grams or under of marijuana has been a violation, like a traffic infraction, in New York State, punishable with a $100 fine. But since at least 1996, New York City police may have been using even these liberalized statutes to harass young people. The charge comes in a 2008 Queens College (CUNY) study, which claims that police have been “tricking and intimidating” youths stopped in the street to inadvertently display their pot by asking them to empty their pockets—and then charging them with a misdemeanor under a part of the law that prohibits marijuana “burning or open to public view.” Such tactics, which Queens College Professor Harry Levine, the study’s author, wrote reflected a police “crusade” against young people of color in particular, contributed to the surprisingly high number of marijuana possession arrests recorded in the city—nearly 40,000 in 2007 alone, up from just 3,200 in 1987, according to the study. The Crime Report contacted the NYPD for comment, but the department did not respond to the query.

According to the most recent FBI’s Uniform Crime Report, 44 percent of all 1.7 million drug arrests in 2007 were for marijuana possession.

Such cases demonstrate that translating liberal public opinion into more lenient marijuana policies won’t be easy. Decriminalization, says Ethan Nadelmann, Executive Director of the Drug Policy Alliance, and one of the country’s foremost advocates for an end to the drug war, is “not inevitable – it’s not going to happen on its own.”

Pro-marijuana activists aren’t likely to get much help from the White House, even though President Barack Obama is the first commander-in-chief to unambiguously admit to using marijuana for recreational purposes. The messages from Washington so far have been mixed.

Last October, Attorney General Eric Holder announced that the Department of Justice would no longer raid or harass dispensaries, growers and users who are otherwise complying with state law. Many marijuana advocates interpreted Holder’s decision as a sign that the federal government was bending their way, and expected that the White House would follow up, for example, by asking the Food and Drug Administration to provide a definitive judgment on the health benefits of marijuana—a position supported by no less an establishment group than the American Medical Association.

Nevertheless, a few days after Holder’s announcement, Obama’s new drug policy czar, former Seattle police chief R. Gil Kerlikowske, undermined any hope of major federal marijuana reform when he issued a statement calling medical marijuana legalization a “non-starter” that “isn’t even on the agenda” for the Administration.

The statement extinguished any lingering doubts about what federal drug bureaucrats thought about the claims of medical benefits, by pointedly placing quotes around “medical” marijuana wherever it used the phrase. Perhaps it wasn’t a coincidence that in 2009, Obama’s first year in office, Drug Enforcement Administration agents seized nearly twice as much marijuana as they did in 2008.

From Reefer Madness to Referendums

And that shouldn’t really surprise anyone who has studied the history of the issue. Marijuana has been illegal in the United States since 1937. Attitudes to the drug were then largely framed by the 1936 film “Reefer Madness,” which depicted high school students driven to manslaughter, suicide and rape by their addiction to marijuana.

The counter-culture movement of the 1960s helped to dispel some of the most outlandish myths about cannabis, but it wasn’t until the 1970s that political momentum to decriminalize marijuana picked up traction. In 1973, Oregon made possession of one ounce or under punishable by a $500-$1,000 fine and effectively became the first state to decriminalize the drug.

By 1979, 11 states had passed similar laws. The issue briefly appeared in presidential politics when President Jimmy Carter endorsed decriminalization in 1977—only to do nothing about it while in office. Still, the late 1970s saw some strides in the movement to allow marijuana for medicinal use. In 1976, after a series of lawsuits, the federal government agreed to provide marijuana (which the government has been growing on a farm at the University of Mississippi since 1968) to a small group of patients suffering tumors, glaucoma and other painful ailments. But the movement went into deep freeze during the Reagan Era, and the so-called Compassionate User Program was officially closed to new patients in 1991.

A decade later, the AIDS epidemic created the opening for the next wave of marijuana activism. In 1996, efforts by AIDS activists in San Francisco to legalize medical marijuana gathered support from wealthy progressives like George Soros, Men’s Warehouse founder George Zimmer and University of Phoenix benefactor John Sperling. Following a campaign steered by Nadelmann’s Drug Policy Alliance, Proposition 215, otherwise known as the Compassionate Use Act of 1996, passed in California with 56 percent of the vote.

“That,” boasts Nadelmann, “was when we realized we could play ball in the big leagues of American politics.”

After the California victory, Washington, Nevada, Oregon and Maine passed bills legalizing medical marijuana. However, the bills, which had been prompted by the passage of statewide referendums or initiatives, left patients, doctors and dispensaries vulnerable to federal authorities—since marijuana continued to remain a Schedule I narcotic under the 1970 federal Controlled Substances Act.

Smoke Signals

Marijuana still makes politicians nervous. And especially at a time when the political scene is increasingly polarized, federal lawmakers seem loath to challenge prevailing popular opinions about its use and dangers—even though support for drug decriminalization in general (and for ending the so-called “war on drugs”) comes from both the left and right.

All the same, according to NORML, a non-profit group that advocates for marijuana legalization, more than a dozen states have bills on medical marijuana pending—and the odds are that at least some of them will join the roster of 14 states that have already legalized medical marijuana. Eric Sterling, president of the Criminal Justice Policy Foundation, a research group advocating reform of the criminal justice system, argues that increasing support from state legislators is a sign that the ground is shifting. For evidence, he points to the fact that, these days, pro-marijuana lawmakers are often the butt of “stoner” jokes. “Nobody jokes about abortion, or gun control,” says Sterling.

In New Jersey, Democratic State Assemblyman Reed Gusciora’s bill legalizing medical marijuana had been stalled for several years before finally passing in January. Gusciora says the bill, which allows use of the drug for only a small number of ailments and does not permit patients to grow their own pot, gained support from lawmakers on both sides of the aisle after dramatic testimony from patients, especially those suffering from cancer.

“There was an educational curve for some of my colleagues,” says Gusciora. “But as more and more learned about the benefits of the drug, they saw that it was the way to go.”

Though support for legalizing medical marijuana does not necessarily translate to support for decriminalizing the drug for adult recreational use, several advocates told The Crime Report that the conversation surrounding the weed’s medicinal uses has allowed legislators and the public at large to talk about marijuana in a serious way, which they see as having a positive effect on future efforts to loosen restrictions.

Marijuana reform advocates also point to a key demographic factor which they say could turn things around: the increasing political influence of baby boomers who grew up in an era when casual use of marijuana was part of the cultural climate. Nadelmann argues this has led to “increasing realism” on the subject of marijuana by baby boomer parents.

“My bottom line as your parent who loves you to death is not ‘did you or didn’t you [smoke pot at a party]?’ says Nadelmann, who has a 21-year-old daughter and admits to being an “occasional” marijuana smoker. “It’s ‘did you come home safely at the end of the night and are you going to grow up and make me healthy grandkids?’ ”

The change is evident in popular culture, particularly in TV and movies. Even though the use of a tobacco cigarette in a film can draw huge protests, there seems to be a bit more tolerance for cannabis. Mainstream sitcoms and dramas are increasingly addressing medical and recreational use of marijuana. HBO’s “Curb Your Enthusiasm,” “The Simpsons,” and “Family Guy” have all screened medical marijuana episodes. Meryl Streep and Steve Martin got high in last year’s romantic comedy, “It’s Complicated” (Tellingly, the movie reportedly received an R rating because their pot smoking did not have any negative consequences). And then, of course, there is Showtime’s Emmy-winning “Weeds,” an entire series devoted to the adventures of a pot-dealing suburban mom.

Ironically, as cultural forces seem to be moving toward a loosening of marijuana laws, advocates seem to be becoming more comfortable talking about the dangers of the drug. The movement, says Alison Holcomb, an attorney with Washington State’s ACLU, has historically avoided “open and honest discussion” about the health and dependency risks associated with recreational use of marijuana, especially for young people.

“We’ve responded to the fact that the opposition has inundated the public with misinformation” about the drug, she explains. “We’ve tried to hold down the pendulum by saying the risks are overstated, but we need to help parents navigate the real risks of drug abuse. If we continue to ignore those risks, we’re not being any more honest than the opposition.”

Another factor, oddly enough, touches directly on the fears of violence associated with the drug trade. The Wall Street Journal recently reported that Mexican drug gangs received nearly 60 percent of their profits from marijuana sales in the U.S. Even in conservative regions of the country, decriminalization is perceived as a means of combating organized crime. Last month, El Paso, Texas City Council Member Beto O’Rourke received support for his legalization views from over half the participants in an online chat with voters.

And finally, there’s the issue of money. At a time when even “tough-on-crime” lawmakers in many states are contemplating measures like releasing inmates in order to fix gaping budgets, questions about the value of spending millions of dollars to enforce marijuana prohibitions have come to the fore.

On the federal level, however, it remains a tough slog. In an e-mailed statement to The Crime Report, the House Judiciary Committee’s ranking Republican, Lamar Smith (R-Texas), made that crystal clear. “Federal drug laws clearly prohibit the distribution of marijuana for any purpose, including state approved medical use,” Smith said. “By directing law enforcement officers to ignore federal drug laws, which were enacted by Congress to protect the American people, the Administration is promoting the use of marijuana.”

Smith concluded with this blunt message: “Federal law enforcement officials have a responsibility to enforce the laws passed by Congress, including those that prohibit the distribution of marijuana.”

Many law enforcement authorities are, not surprisingly, uncomfortable at being caught between federal and state priorities in the drug war. I asked Steven Demofonte of New Jersey’s Fraternal Order of Police what his members thought of his state’s new medical marijuana law, which legalizes the drug for certain patients, such as those suffering from cancer and multiple sclerosis. His emailed response was that the measure was “disappointing” to FOP members.

“When problems related to the law arise — and they will — we in law enforcement will be the ones to shoulder the burden,” he added. “Any state considering legalizing marijuana should look very closely at what has happened in California.”

But what has happened in California? Last month, I made a trip to San Francisco to see for myself.

THURSDAY: Oaksterdam: California’s Experiment with Legal Marijuana.

Julia Dahl is a contributing editor at The Crime Report.

Photo by Fulvio Minichini via Flickr.

* The first version of this story incorrectly referred to the upcoming California initiative as AB 390. AB 390 was an earlier version of AB 2254, a legislative bill that would legalize cannabis sponsored by Assembly Member Tom Ammiano. The initiative that will be voted on in November has yet to be given a number. The Crime Report thanks reader Doug McVay for spotting our error.